Competing Congressional Bills Would Reinforce Religious Freedom

Two proposed bills in the U.S. Congress would make it tougher for states to enact laws impinging on religious liberties.

The bills, introduced in November by Rep. Christopher Smith (R-N.J.), and in July by Rep. Stephen Solarz (D-N.Y.), are designed to circumvent a 1990 U.S. Supreme Court ruling that states no longer have to demonstrate a “compelling state interest” before barring certain religious practices.

In April 1990, the high court voted 6-3 to uphold an Oregon anti-drug abuse law against claims that it effectively barred American Indians from using peyote in their religious rituals.

Jewish groups fear the ruling could signal a new, deferential treatment by the high court toward state laws that incidentally impinge on religious liberties. If so, the court could conceivably permit states to outlaw yarmulkes in public schools or ban the drinking of sacramental wine by minors.

Both of the proposed bills seek to restore the compelling state interest test. But Smith, who is pro-life, does not want that higher standard applied to cases challenging laws that restrict abortion, because he fears that women challenging such laws may do so on religious freedom grounds.

Smith argues that Solarz’s bill, which does not carve out an exception for cases involving abortion, would make it easer for such challenges to succeed by compelling courts to apply the tougher standard in reviewing anti-abortion laws.

But Jewish groups opposed to Smith’s modified version of the Solarz bill characterize it as an arbitrary division of religious liberty guarantees along abortion and non-abortion lines. They prefer Solarz’s approach, under which all religious liberty cases undergo the same legal test.

Marc Stern, legal director of the American Jewish Congress, who helped draft the Solarz bill, said Smith’s decision to introduce his own bill “makes the issue neat and clean.”

“Now we have to fight out the abortion issue,” he said.

Solarz’s version of the bill has 124 co-sponsors, while Smith’s had 19 as of the close of the first session of the 102nd Congress.

After the second session convenes in January, Sens. Joseph Biden (D-Del) and Orrin Hatch (R-Utah) will introduce a Senate version of the Solarz bill, a Hatch staffer said Tuesday.